Pain and Suffering: An injured child may recover for pain and suffering damages, which are ordinarily the most “valuable” element of a bodily injury claim in California. These are the right to compensation for all “pain and suffering” a child has sustained, and will endure, as a direct result (proximate cause) of the injury. These legal damages are often referred to as “general damages,” as distinguished from “special damages” (medical bills and lost wages).

The concept of pain and suffering is a unitary concept which encompasses the total physical pain or discomfort, including any and all emotional trauma, resulting from a given injury. Thus, the injured child is entitled as a matter of law o all compensatory damages for all physical pain he or she suffered; this includes all pain resulting from “grief, nervousness, fright, anxiety, worry, shock, mortification, humiliation, embarrassment, terror, apprehension, indignity, or ordeal.” A lawyer usually includes pain and suffering arguments in his or her negotiations with the insurance company, in the demand package, and ultimately, if necessary, in the testimony of the child directly, either through deposition, or trial. Again, child injury trials are generally more uncommon than adult injury trials, but an injured child is usually in the best position, like an injured adult, to give the most detailed testimony on his or her pain and suffering damages. Of course, this testimony must be corroborated with the appropriate medical evidence, and, at times, witness statements from friends, family members, and neighbors are generally admissible, or relevant in negotiations with a claims adjuster.

This point brings us to injured infants; obviously, an injured infant cannot be called to the witness stand to testify to their emotional and physical pain and suffering. The best that can usually be done is to have the injured infant’s doctors or family members recall the child’s discomfort, or the child’s moaning, crying, or the like. To this end, once medical proof is submitted regarding the injury to the infant, the jury is entitled to presume that the infant experienced pain and suffering type damages, and to award damages based on this presumption.

An injured child may also recover for duties under duress and loss of enjoyment of life damages that are also underneath the umbrella of pain and suffering damages (general damages). Thus, damages are awarded to a child for the detriment the child has suffered, and will continue to suffer, from an inability to “enjoy life” as he or she could have but for the injury’s having happened.

Special Damages: An injured child may recover for special damages, which are specific, or easy-to-calculate, damages such as wage loss, medical bills, and mileage to and from doctors appointments (remember, a parent can recover for these special damages, and they are usually part of the underlying claim for the child’s damages; I always include the mileage damage [at $0.53 per mile] in my child client’s injury case).

However, for wage loss, there is special concern regarding very young children. There are different evidentiary concerns that raise in regard to an injured child too young to have made any clear career plans. Thus, a lawyer would have to show that the impact into the child’s lost income is due to some catastrophic loss, like brain damage or paralysis. It must be confirmed through precise medical findings, and it should be corroborated with an economic expert who testifies about what the child’s occupation “could have been” (e.g., doctor, lawyer, engineer); and to what degree the injury has diminished or eliminated his or her earning capacity (income). Economic experts usually will help explain this through a brief analysis of population statistics and such. The final figure will also need to be adjusted for present-day cash value and inflation trends.

Any minor child who was engaged in employment at the time of his or her accident is entitled to same lost earnings as an adult would be entitled to. Again, with minor children who are old enough to work, there are still some issues present for those minor children not yet old enough to enter the job market on a full-time basis. Any minor child who has an established history of working part-time (e.g., after school, or during vacations) is without a doubt entitled to recover for those lost earnings. The same is true for any part-time job opportunities lost due to the injury or accident. However, if there is a claim for impaired earning capacity due to the injury, then more precise calculations are in order, arrived at by experts. A minor child is entitled to recover for the “present cash value” of that part of his or her earning capacity reasonably certain to be lost after reaching eighteen years of age.

INTERESTING POINT: A child’s wrongful life claim is a unique type of claim under California law. A physician (or other health care professional) who is negligent by failing to properly identify or warn would-be parents of a hereditary condition or likely deformity may be liable to a child born with the specific deformity or affliction for the child’s resulting medical damages (expenses) in cases in which the parents specifically relied on the physician’s professional medical advice in deciding to conceive in the first place. Yet, when the physician’s only negligence is in causing the child’s birth, not causing the birth defect, the child may not recover for pain and suffering or other types of general damages. Only special damages would be available, like medical expenses.78 The California courts have said it is “simply impossible to determine in any rational or reasoned fashion” whether a child did suffer an injury in being born impaired rather than not being born at all. Also, any damages awarded would need to be offset by the defendant’s conduct—here, the child’s actual and physical existence. Again, I quote from California case law: “Because of the incalculable nature of both elements of this harm-benefit equation, we believe that a reasoned, non-arbitrary award of general damages is simply not obtainable.”


For "Research Bugs" (or other lawyers on the web):  See Capelouto v. Kaiser Found. Hosps. (1972) 7 C3d 889, 892-893, 103 CR 856, 859; see also Potter v. Firestone Tire & Rubber Co. (1993) 6 C4th 965, 981, 25 CR2d 550, 560 “it is settled in California that in ordinary negligence actions for physical injury, recovery foremotional distress caused by that injury is available as an item of parasitic damages” (emphasis added); see also Norfolk & Western Ry. Co. v. Ayers (2003) 538 US 135, 146-159, 123 S. Ct. 1210, 1217-1224—under Federal Employers’ Liability Act (45 USC Section 51 et seq.), plaintiff with work-related asbestosis may recover pain and suffering damages that include fear of developing asbestos-related cancer; CACI 3905A; BAJI 14.13. See Curlender v. Bio-Science Laboratories (1980) 106 CA3d 811, 831, 165 CR 477, 489-490 (disapproved on other grounds in Turpin v. Sortini (1982) 31 C3d 220, 231, 182 CR 337, 344; Capelouto v. Kaiser Foundation Hospitals (1972) 7 C3d 889, 103 CR 856. See Loth v. Truck-A-Way Corp. (1998) 60 CA4th 757, 760, 70 CR2d 571, 573 & fn. 1.

Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95.  However, it is free to all California residents, or those injured in a California accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.